35984 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

LIBRARY OF CONGRESS

Copyright Office

[Docket No. 96–4 CARP DPRA]

Digital Phonorecord Delivery Rate

Adjustment Proceeding

AGENCY: Copyright Office, Library of

Congress.

ACTION: Notices of intent to participate.

SUMMARY: The Library of Congress is

requesting that those parties interested

in participating in a Copyright

Arbitration Royalty Panel (‘‘CARP’’)

proceeding for establishing rates and

terms for digital phonorecord deliveries

file a Notice of Intent to Participate.

Those parties who have already filed

such a notice need not file again.

DATES: Notices of Intent to Participate

are due July 31, 1998.

ADDRESSES: Notices of Intent to

Participate, when sent by mail, should

be addressed to: Copyright Arbitration

Royalty Panel (CARP), P.O. Box 70977,

Southwest Station, Washington, DC

20024. If hand delivered, they should be

brought to: Office of the General

Counsel, Copyright Office, James

Madison Memorial Building, Room LM–

407, First and Independence Avenues,

SE, Washington, DC.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel, or

William Roberts, Senior Attorney for

Compulsory Licenses, Copyright

Arbitration Royalty Panels, P.O. Box

70977, Southwest Station, Washington,

DC 20024. Telephone: (202) 707–8380.

Facsimile: (202) 707–8366.

SUPPLEMENTARY INFORMATION:

Background

On November 1, 1995, Congress

passed the Digital Performance Right in

Sound Recordings Act of 1995 (‘‘Digital

Performance Act’’). Public Law 104–39,

109 Stat. 336. Among other things, it

confirms and clarifies that the scope of

the compulsory license to make and

distribute phonorecords of nondramatic

musical compositions includes the right

to distribute or authorize distribution by

means of a digital transmission which

constitutes a ‘‘digital phonorecord

delivery.’’ 17 U.S.C. 115(c)(3)(A). A

‘‘digital phonorecord delivery’’ is

defined as each individual delivery of a

phonorecord by digital transmission of

a sound recording which results in a

specifically identifiable reproduction by

or for any transmission

recipient. * * ’’ 17 U.S.C. 115(d).

The Digital Performance Act

established that the rate for all digital

phonorecord deliveries made or

authorized under a compulsory license

on or before December 31, 1997, is the

same rate in effect for the making and

distribution of physical phonorecords.

17 U.S.C. 115(c)(3)(A)(i). For digital

phonorecord deliveries made or

authorized after December 31, 1997, the

Digital Performance Act established a

process that may take two-steps for

determining the terms and rates. 17

U.S.C. 115(c)(3)(A)(ii). The first step in

the process is a voluntary negotiation

period initiated by the Librarian of

Congress to enable copyright owners

and users of the section 115 digital

phonorecord delivery license to

negotiate the terms and rates of the

license. The Librarian initiated this

period on July 17, 1996, and directed it

to end on December 31, 1996. 61 FR

37213 (July 17, 1996).

The second step of the process is the

convening of a CARP to determine

reasonable terms and rates for digital

phonorecord deliveries for parties not

subject to a negotiated agreement. In the

July 17, 1996, Federal Register notice,

the Library stated that CARP

proceedings would begin, in accordance

with the rules of 37 CFR part 251, on

January 31, 1997. 61 FR 37214 (July 17,

1996). The Library also directed those

parties not subject to a negotiated

agreement to file their petitions to

convene a CARP, as required by 17

U.S.C. 115(c)(3)(D), by January 10, 1997,

and their Notices of Intent to Participate

in CARP proceedings by January 17,

1997. Id. In addition, the Library

directed interested parties to comment

by November 8, 1996, on the possibility

of consolidating the CARP proceeding to

determine terms and rates for digital

phonorecord deliveries with the

proceeding to adjust the mechanical

royalty rate for the making and

distributing of physical phonorecords.

61 FR 37215 (July 17, 1996).

On November 8, 1996, the Library

received a joint motion from the

Recording Industry Association of

America (‘‘RIAA’’), the National Music

Publishers’ Association, Inc. (‘‘NMPA’’),

and The Harry Fox Agency, Inc. (‘‘Harry

Fox’’) to vacate the scheduled dates

appearing in the July 17, 1996, Federal

Register notice for convening a CARP.

The Library vacated the schedule on

December 11, 1996, and established a

new precontroversy discovery schedule

and date for the filing of Notices of

Intent to Participate. 61 FR 65243

(December 11, 1996).

After publication of the new schedule,

representatives of the RIAA, NMPA and

Harry Fox informed the Library that

terms and rates for digital phonorecord

deliveries could be negotiated through

voluntary agreement, and requested that

the Library vacate the new schedule to

allow sufficient time for such

negotiations. The Library vacated the

new schedule on February 3, 1997. 62

FR 5057 (February 3, 1997). The parties

did reach a voluntary agreement and,

pursuant to the rules, the Library

published the proposed rates and terms

for digital phonorecord deliveries for

public comment. 62 FR 63506

(December 1, 1997). In that notice of

proposed rulemaking, the Library

specified that any party that objected to

the proposed rates and terms was

required to file a Notice of Intent to

Participate and was expected to fully

participate in a CARP proceeding. 62 FR

63507 (December 1, 1997). However, the

Library did not call for the filing of

Notices of Intent to Participate by

parties other than those who objected to

the proposed rates and terms.

Two parties, the United States

Telephone Association (‘‘USTA’’) and

the Coalition of Internet Webcasters

(‘‘Webcasters’’), opposed the proposed

terms and rates and filed Notices of

Intent to Participate. A third party,

Broadcast Music, Inc. (‘‘BMI’’), also filed

a Notice of Intent to Participate in the

event that a CARP takes place. BMI’s

interest is the relationship between

digital phonorecord deliveries and the

public performance right.

Notices of Intent To Participate

The parties in this proceeding

continue to negotiate in an effort to

reach agreement as to the terms and

rates for digital phonorecord deliveries.

In the event that a CARP becomes

necessary, participating parties must be

identified. Because earlier deadlines for

the filing of Notices of Intent to

Participate were vacated at the parties’

request, Notices have yet to be filed in

this proceeding, save those filed by

USTA, Webcasters and BMI.

Consequently, the Library is instructing

those parties (other than USTA,

Webcasters and BMI) who wish to

participate in a CARP proceeding to

establish rates and terms for digital

phonorecord deliveries to file a Notice

of Intent to Participate by July 31, 1998.

Dated: June 24, 1998.

David O. Carson,

General Counsel.

[FR Doc. 98–17478 Filed 6–30–98; 8:45 am]

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